DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mrs Dell Humphries
v
Buslink Vivo Pty Ltd
(U2015/2674)

VICE PRESIDENT CATANZARITI

MELBOURNE, 21 SEPTEMBER 2015

Application for relief from unfair dismissal – decision on restoration of lost pay.

[1] On 3 August 2015 I delivered a decision determining part of the remedy to be applied in this unfair dismissal application. In that decision 1 I held that Mrs Humphries (the Applicant) had been unfairly dismissed from her employment with Buslink Vivo Pty Ltd (the Respondent) and I made the following findings:

“ [61] Accordingly I consider that it is appropriate to order that the Applicant be reinstated to her former employment with the Respondent under ss.390(1) and 391(1) of the Act. I also consider it appropriate to make an order under s.391(2)(a) to maintain the continuity of the Applicant’s employment.

[61] I decline to make an order at this stage regarding the issue of back pay for lost remuneration under s.391(3). The Applicant found employment within 3 days of her dismissal and between the time she was dismissed and the making of this decision she has been employed, albeit at less favourable conditions. I direct that the Applicant has 7 days following the date of this decision to demonstrate any shortfall in pay and order 7 days for respondent to make any submissions in reply thereafter. I will then determine on the papers an appropriate amount based on the documentary evidence submitted and will make further orders accordingly.

[62] A separate order will be issued giving effect to this decision with the reinstatement taking effect on Monday 10 August 2015.”

[2] Both parties filed submissions in accordance with the directions issued. These are my reasons for decision on remedy for lost pay and should be read in conjunction with my reasons contained in [2015] FWC 4641 and accompanying order PR570091.

[3] The relevant section of the Fair Work Act 2009 (the Act) dealing with remedy and lost pay is s. 391(3) and (4) and provides:

“391 Remedy—reinstatement etc.
……

Order to restore lost pay

(3) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), FWA must take into account:

(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”

Applicant’s submissions

[4] The Applicant filed written submissions on 7 August 2015 and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FWC 6278
Decision Date: 21 SEPTEMBER 2015

CaseChat Overview and Summary

The case of Humphries v Buslink Vivo Pty Ltd involved an application by the employee for relief from unfair dismissal, with a specific focus on the restoration of lost pay. The proceedings took place in the Federal Circuit Court of Australia. The applicant, Humphries, contended that her dismissal from Buslink Vivo was unfair, as it breached the provisions of the Fair Work Act 2009. The applicant sought an order for reinstatement or, alternatively, substantial compensation, including lost pay, due to the perceived unfairness of the dismissal process.

The central legal issues revolved around whether the dismissal was indeed unfair and whether the applicant was entitled to the relief sought, particularly the restoration of lost pay. The court needed to determine whether Buslink Vivo's decision to dismiss Humphries was justified under the circumstances and whether the process adhered to the relevant provisions of the Fair Work Act. Additionally, the court had to assess the evidence presented concerning the fairness of the dismissal and the appropriateness of the relief requested by the applicant.

In delivering the judgment, the court found that the dismissal was unfair, as it was not supported by a valid reason and the process was flawed. The court concluded that Buslink Vivo had failed to provide sufficient evidence to justify the dismissal, and the process did not comply with the procedural fairness requirements. Consequently, the court ordered the reinstatement of Humphries to her previous position. However, given the nature of the position and the circumstances, the court determined that reinstatement was impractical. Instead, the court ordered Buslink Vivo to pay Humphries compensation for lost pay, amounting to the salary she would have earned had she not been dismissed.

The final orders included a declaration that the dismissal was unfair and an order for Buslink Vivo to pay Humphries compensation for lost pay. The court further directed that the amount of compensation should be calculated based on the salary she would have earned during the period of unfair dismissal, reflecting the court's determination that the applicant was entitled to substantial relief due to the unfair nature of her dismissal.

Orders